Government policy and public inquiries

The seminal 1980 House of Lords decision in the Bushell case, where objectors were held to have no right to cross-examine government witnesses on traffic forecasting methodology, left open many questions in what is a difficult and controversial area of administrative law. Mr Justice Webster's judgment in the present case tackles a number of these directly, providing some bold answers with possibly far-reaching implications.

The case arose out of a public inquiry into the Secretary of State's draft order to raise tolls for vehicles crossing the Severn Bridge. His power to levy tolls derived from the Severn Bridge Tolls Act which permits - but does not require - him to recover the full costs of the bridge by levying tolls on its users.

At the inquiry, counsel for the Department of Transport stated that it was Government policy to recover the cost of estuarine crossings from their users rather than the general public, and in the light of that, the inquiry Inspector held that the principle of levying tolls for this reason, rather than their particular apportionment, was outside the scope of the inquiry. It was, however, precisely on this area that objectors wished to concentrate, on the grounds that the Secretary of state was under no duty to levy tolls on this basis, and that the principle was discriminatory to bridge users.

Although the Inspector heard objectors on this area, he stated in his report that "it is no part of my function to express any opinion on the merits of Government policy; once I know what it is, I must pay regard to it in making my recommendation on the draft order."

Mr Justice Webster accepted that the Secretary of State was entitled to have a policy of covering the costs of crossings from tolls, but held that in its implementation towards a particular bridge, other duties came into play, notably to hear objectors. He also accepted that the Secretary of State could lawfully exclude certain matters from the ambit of the local inquiry, but not "merely by virtue of the fact that it is stated on his behalf that the matter is one of policy."

The question then was what type of matter could be lawfully excluded. The speeches in the Bushell case provided little real help, but in the light of that decision, Mr Justice Webster was prepared to formulate an answer: a minister could exclude a matter where investigation into it would not assist him in exercising a particular power because he had already made overriding and lawful decisions which could not now be altered without considerable disruption and inconvenience.

Where, however, a particular declared policy would substantially determine the decision in hand, "I would expect a court to be entitled and expect to scrutinise not suspiciously but very carefully" the assertion by a government department that such a policy should be excluded from discussion. In the case before it, the court was unconvinced that opening up the inquiry to discuss the principle of using tolls to cover costs would have risked causing disproportionate inconvenience to the Minister's declare policy, and it had therefore been wrong to exclude the issue from consideration.

The application of this line of reasoning to other types of local inquiry where government policy is relevant - notably those concerning energy-related developments - could have serious implications for existing administrative thinking in this area.